Allman v. Order of United Commercial Travelers of America

• Decision Date: 07 April 1919
• Citation: 213 S.W. 429,277 Mo. 678
• Parties: LEAH ALLMAN v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, Appellant
• Court: Missouri Supreme Court

213 S.W. 429

277 Mo. 678

LEAH ALLMAN v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, Appellant

Supreme Court of Missouri, First Division

April 7, 1919

Appeal from Jasper Circuit Court. -- Hon. D. E. Blair, Judge.

Reversed.

George Hubbert, M. E. Benton and Fred G. Hubbert for appellant.

(1) Performance of the contractual conditions requiring two notices, one from the member concerning the accident and an additional one from the beneficiary, each within a limited time fixed, with proofs of death's sole and independent cause, for submission in a given time to decision in the order by the appointed deciding committee, and of the further condition of consent to be given and procured by the beneficiary on request for autopsy, were each and all essential parts of respondent's case. The absence of any one of such conditions necessarily must defeat the action. Not one of them is found fulfilled in this record. There is nothing to support the verdict and judgment. Trav. Ins Co. v. Nix, 142 F. 653; Westerman v. Sup Lodge, 196 Mo. 738; Claudy v. Royal League, 259 Mo. 107; 2 Bacon Ben. Soc. (3 Ed.) sec. 460; Galvin v Knights of F. M., 169 Mo.App. 469; Haynie v. Knights Templars Indem. Co., 139 Mo. 416; Norton v. Cath. Ord. of Foresters, 114 N.W. 893; Burchard v. Western Coml. Trav. Assn, 139 Mo.App. 621; Boyce v. Royal, 99 Mo.App. 349; Brittenham v. Sovereign Camp, 180 Mo.App. 534. (2) The required and specified time notices are vital to the contract and are inerasable conditions, and the proof of them properly rests upon respondent in order to recover. Niblack on Benefit Societies, sec. 415; Travelers' Ins. Co. v. Meyers & Co., 49 L. R. A. 760; Meech v. Nat. Acc. Soc., 63 N.Y.S. 1008, 50 A.D. 144; Natl. Pap. Box Co. v. Aetna Life Ins. Co., 170 Mo.App. 361; Hoffman v. Mfg. Accident Co., 56 Mo.App. 310; Whittemore v. Sells, 76 Mo.App. 248; Hayes v. Continental Casualty Co., 98 Mo.App. 410; James v. Casualty Co., 113 Mo.App. 622; Baumister v. Casualty Co., 124 Mo.App. 38; McFarland v. Accident Assn., 124 Mo. 215. (3) The breach of the condition that the beneficiary should give and procure consent to the holding of an autopsy and examination of her husband's remains bars her recovery as an essential and unmoveable barrier. This under the same fundamental principle and constitutional guaranties applicable to other unfulfilled conditions precedent. Loesch v. Surety Co., 176 Mo. 654; Brittenham v. W. O. W., 180 Mo.App. 535; Holmes v. Tyson, 147 Pa. 3051, 15 L. R. A. 209; Condun v. Mutual Reserve L. Assn., 44 L. R. A. 149; Carr v. Pacific Mut. L. Ins. Co., 100 Mo.App. 602; Shader v. Pass Assn., 66 N.Y. 441, 23 Am. Rep. 65. (4) There is no competent evidence of any waivers of the essential conditions of recovery under the insurance agreement, neither by intention of respondent nor by acts of its anthorized agent, member, officer or body; nor are there any grounds of estoppel shown against any required performances of such conditions. The rulings and instructions of the court, allowing the jury to overturn such conditions, are grievous errors, and violative of fundamental law. Other instructions in proper form cannot be regarded as having cured this error. U. S. Const., Articles 5 and 14 of Amendments; Mo. Const. art. 2, secs. 10, 20 and 30; Laws 1911, p. 292, sec. 22; Davis v. National Council, 196 S.W. (Mo. App.) 97; Galvin v. Knights of F. M., 169 Mo.App. 508; Hollard v. Tyler, 11 Ind. 121; Ramsey v. General Accident Co., 160 Mo.App. 236; Brittenham v. Sovereign Camp, 180 Mo.App. 537; Wintergast v. Court of Honor, 185 Mo.App. 373; Loesch v. Union C. & S. Co., 176 Mo. 654; Day v. Supreme Council, 174 Mo.App. 260; Clair v. Royal Arcanum, 172 Mo.App. 109; Chandler v. Ins. Co., 180 Mo.App. 394; Lesser v. St. L. & S. F. Ry. Co., 85 Mo. 335; Myers v. Maryland Casualty Co., 123 Mo.App. 687; Dezell v. Fidelity Co., 176 Mo. 253; Griffith v. Supreme Council, Royal Arcanum, 182 Mo.App. 644; Meech v. Natl. Acc. Soc., 63 N.Y.S. 1008; Travelers Ins. Co. v. Nix, 142 F. 653.

Humphrey, Boxley & Reeves, for respondent; Haywood Scott of counsel.

(1) "The beneficiary, until the death of the insured, had, at most, only an inchoate and contingent interest in the policy. The insurer could not, until that event occurred, recognize her as a party to the contract having a present interest therein. She could have no claim under the contract until the death of the insured and therefore she could give no notice of the accident or injury until that event occurred." Crotty v. Casualty Co., 163 Mo.App. 637; Hoffman v. Accident Co., 56 Mo.App. 306. (2) Even if plaintiff did not notify appellant within the period stipulated in the contract, appellant by its course of dealing waived its right to declare a forfeiture. (a) According to the insurance contract "if death shall result under the conditions covered by this article a notice of said death must be given in writing to the supreme secretary within ten days after said death." (b) According to the testimony, the local organization where the assured paid all his dues and premiums officiated at his funeral, and on March 19, 1914, Gettings, as secretary and treasurer of Neosho council, wrote Mrs. Allman in relation to the death of her husband. Subsequently, the appellant, under date of April 6, 1914, acknowledged receipt of notice of death from respondent, forwarded proof blanks and requested particulars of the death, and neither then nor thereafter did appellant complain that notice had not been timely given. In fact appellant attempted to settle the claim, and C. M. Taylor, authorized representative, called on respondent, telling her he had "currency" in his pocket with which to settle, and at no time did appellant complain of any defect in the notice of death. Even when respondent refused to accept the "currency" from C. M. Taylor, "authorized representative," eight months after the death, because the amount was inadequate, Taylor never mentioned defect in notice of death, but instantly as a terrifying influence, demanded and was accorded the right to hold an autopsy. Afterwards appellant denied liability or rejected the claim, but did not do so on the grounds that the notice of death was out in time. Authorized representatives, such as Gettings, secretary and treasurer for appellant at Neosho, and Mr. Hubbert, one of the attorneys in this case, obtained certain affidavits from plaintiff for appellant, and these were received and used by appellant as a basis of its consideration of the claim. It was not disputed that Gettings and Hubbert were acting for appellant, and while both of these men were in court during the trial they were not called to deny their authority or that they were acting for appellant. (c) "No one can doubt that the purpose of the notice required by this provision of the policy is to advise defendant of the probable claim to be presented and afford it an opportunity for investigation thereabout. It appears that though defendant's general agent denied all liability on the policy at the time the notice was served, September 20, it nevertheless sent its adjuster, Mr. Carroll, to investigate and settle the claim a few weeks thereafter . . . At most the failure to give the notice authorized defendant to declare a forfeiture of the claim under the policy for that cause. The provision as to such forfeiture was for defendant's benefit and could be waived by it if it saw fit to do so. Defendant knew its rights in the premises and it first asserted them to the effect above stated. A waiver is the intentional abandonment or relinquishment of a known right, and the intention to do so is the essential element involved. Francis v. A. O. U. W., 150 Mo.App. 347. Obviously the court was authorized to find from the facts above set forth that defendant intended to and did waive the right of forfeiture on the ground that notice was not given within a reasonable time, for this matter seems to have been abandoned entirely by the adjuster. A waiver once attached may not be thereafter recalled." Bell v. Mo. State Life Ins. Co., 166 Mo.App. 390. There is an abundance in the evidence to support the finding on the grounds of a waiver. Myers v. Casualty Co., 123 Mo.App. 682; Crenshaw v. Pac. Mutual Life Ins. Co., 63 Mo.App. 678; Brix v. Fidelity Co., 171 Mo.App. 524; Mining & Milling Co. v. Fire Ins. Co., 267 Mo. 604; Thompson v. M. B. A., 189 Mo.App. ___.

BLAIR P. J. Bond, J., not sitting.

OPINION

BLAIR, P. J.

This is an appeal from a judgment for $ 8601.67 in an action respondent brought upon a benefit certificate issued upon the life of her husband by appellant, a fraternal beneficiary society.

The evidence showed respondent's husband joined appellant order December 5, 1913, was accidentally injured on March 1, 1914, and died on March 12, 1914. Appellant earnestly contends (1) there is no evidence the injury was the cause of death; (2) that, at most, it conclusively appears the injury was not the sole cause of death; (3) that on several grounds, all rights under the certificate were forfeited; and (4) that numerous errors occurred at the trial. The question whether forfeitures were waived is the basis of one of the principal controversies in the case.

The benefit certificate sued on and the applicable statute (Sec. 9, p. 286, Laws 1911) provide that the certificate, the articles of incorporation, the constitution and by-laws of the society and the application on which the certificate was issued shall constitute the contract between the society and the insured member. The provisions of appellant's constitution relating to notice and waiver are endorsed on the benefit certificate, and are as follows:

"Any insured member who shall sustain an accident covered by this article shall, within ten days after the date of such...